Is our lawyer incompetent? Is it even worth changing lawyers now?
January 14, 2014 5:43 AM   Subscribe

We think our lawyer, who has been working our case for over two years, may be incompetent, but we find it hard to determine for sure. He seems very compliant in regard to the other side, while being subject to brush-offs and delaying tactics from the other side. Even if he is incompetent, we're not sure what's involved in changing lawyers. Perhaps you can shed some light on this.

Two years ago, my partner and I were going to rent an apartment that was being advertised by the current tenants. They were finding tenants, so they could leave their own lease early. We liked the apartment, signed a new lease with the landlord and handed over the first month's rent, the last month's rent, and a security deposit. This is customary in Somerville, Massachusetts, where the apartment is. This was about a month before we were to move in.

A week later, we were notified by the current tenants that bed bugs had appeared in the apartment a few days before, and they had reported it to the landlord. They said that there had been bed bugs before, but the landlord had it treated, and they thought it was resolved. (I then read that bed bugs are notoriously difficult to exterminate.) The landlord told them that the landlord had no obligation to tell us about this.

I called the landlord and asked for the lease to be cancelled and to give us our money back. He said that there were costs to find a new tenant, and that he would give just an amount that was about the size of the security deposit back.

At this point, we asked for lawyer recommendations. One said he wanted me to check on certain records, and another said we had a good case. We were on friendly terms with the former tenants, so we let them know what was going on, and they said that they had a lawyer who had started on their case against the landlord.

Perhaps unwisely, since we had not locked down a lawyer yet, we agreed to meet this lawyer and retained him as well. We were going to sue for the money we gave the landlord based on deceptive practices, and the former tenants were going to sue for the damages caused by having to throw everything out because of the bed bugs.

The landlord (a company) wanted to settle, so we went through a couple rounds of ridiculous offers from the landlord. Then, we decided to go to small claims court. About a year and half after the case started, our lawyer told us we had a court date three weeks hence, but that he was going to have it moved because he had prior engagement. I noted that, assuming things would go as he said, then asked for an update two weeks later. Three days after that, he let us know that it was still on. I am not confident that he would have known that had I not nudged him to check.

A couple days after that, it really was continued (moved).

Then, the landlord wanted the cases (ours and the former tenants') combined and moved from small claims court to civil court. Our lawyer seemed to think that was a good idea, so I said, sure, go with what you think is good. In retrospect, this was very accommodating to the landlord, in that it at least caused another delay. Also, it's weird that they'd want that if it would make our case stronger.

About 1.5 years after the case started, our lawyer made a request for production to start discovery. Of course, in response, the landlord's lawyer wanted to open up settlement talks again. We heard them out; they were bullshit, and almost exactly the same as last time. I have no reason to believe they were made in good faith.

At about the 2-year mark, there was a hearing, and our lawyer showed up, but the landlord's lawyer did not, so they were defaulted. Our lawyer worked with them to remove the default judgment because he felt they could easily remove it themselves anyway. However, he said it would give us leverage in settlements. However, if that were the case, shouldn't we have negotiated before removing the default? Something wasn't right there.

And so, the landlord said he really wanted to resolve this and would make a good offer. Of course, it was bullshit.



- Our lawyer seems overly accommodating to the other side. I understand that being a "tough" lawyer isn't a matter of being a dick, but it seems like he's being lead by the opposition.

- He doesn't seem to be on top of things. We always have to badger him for updates. I understand he's working off of contingency, which may not be that motivating, but is this really the what we should expect?

And if our lawyer is incompetent, is it worth changing lawyers at the point? Are we going to lose anything by doing this? Will document transfer between him and the new lawyer go smoothly? Should we part ways with the former tenants, who as far as we can tell, are trustworthy? Any other advice for finally getting our money back?
posted by anonymous to Law & Government (12 answers total) 2 users marked this as a favorite
Procedural niceness is really smart lawyering. Clients often think you should meanly punish the other side procedurally. Nothing pisses a judge off more.
posted by Ironmouth at 5:47 AM on January 14, 2014 [10 favorites]

A lawyer should be responsive to reasonable client inquiries. Even one working on a contingency when a small amount of money is involved.

I have a hard time figuring out how a case that involves two months rent is still in the court system two years later. Yes, it is easy to get bogged down gradually over time, but at some point a reasonable mind has to say that enough is enough, and to cut your losses.
posted by yclipse at 5:58 AM on January 14, 2014 [1 favorite]

What looks like "being really accommodating to the other side" to you, is really just expected professional courtesy.

Our lawyer worked with them to remove the default judgment because he felt they could easily remove it themselves anyway.

This is true, in my experience. (Not in MA.)

My take on your lawyer is that his conduct is pretty common. Not incompetence.

I think that, given that this case was originally filed in small claims, it's just a case that you have to understand is not going to be at the top of anyone's priority list ... unless you're really paying him exorbitantly (which wouldn't make sense).
posted by jayder at 6:39 AM on January 14, 2014

They were finding tenants, so they could leave their own lease early...They said that there had been bed bugs before

they had a lawyer who had started on their case against the landlord

Don't hire the same lawyer as someone you might have a conflict of interest with. You might not have signed that lease and allowed them to leave early if you knew there was a history of bedbugs in that apartment.

You've been at this for two years already, why keep throwing good money after bad? Surely you've already spent most of what you might gain on legal fees, plus there's the time and stress involved, all to chase down two months of rent? There's something to be said for taking the settlement and moving on from this.
posted by yohko at 6:41 AM on January 14, 2014

It's not "a case that involves two months rent [that] is still in the court system two years later."--it's a case that involves a claim for deceptive business practices. When I was an attorney in a consumer law firm, deceptive business practices cases that took 4-5 years on average regardless of the sums of money involved because consumer law involves a great many defenses, counterclaims, and lots of discovery. It also gets entangled with federal law sometimes. If the case was joined to another case, the cases took even longer because on top of all the legal issues, you were now coordinating the schedules of three legal teams and a courtroom.

However, without seeing the case file and the case file of the case it was joined to, it's unlikely anyone here can determine whether it's unreasonable that this case has not yet been concluded. In my experience, it's not at all a sign of incompetent lawyering that a consumer protection claim in civil court with multiple plaintiffs is not wrapped up in two years.

That said, if you feel your lawyer is not handling your case well (that is, he's not responding to you; he's not properly explaining things to you; he can't adequately explain timelines), tell him that. Ask for a meeting so he can explain exactly what's happening. Then, if you really feel he doesn't know what he's doing, take your case file to another attorney and ask for a consultation. If that attorney thinks your case is not being handled correctly and agrees to take your case, substituting attorneys is pretty simple and usually routine. But it slows things down. Your new attorney has to get up to speed on the facts, has to figure out what the other guy's plan was, has to come up with his own litigation strategy, and will have to consult with your other plaintiff's attorney to figure out just how much your interests are aligned. That's going to take a lot of time.

If your attorney is, in fact, incompetent, there may or may not be issues getting your files from him, depending on whether he has a good record system or adequate staff to transfer the case. In my experience, changing attorneys midcase can either be a complete nonissue or can create the largest delay to date in the case. Closing out and transferring cases is entirely down to how well the office functions as an office, even if the client has kept a copy of every single thing she has received from and given to the attorney. A lot of paper is changing hands that you're not seeing.
posted by crush-onastick at 6:49 AM on January 14, 2014 [2 favorites]

This is not legal advice, and I am not your lawyer.

I agree that lawyers are expected to be accommodating to the scheduling requests of the other side. It's a little hard to tell whether your guy is just a doormat.

What seems funny to me, though, is that the special 93A action you link to above is such an amazing tool in the hands of the consumer, and is often filed without an attorney, and in my second-hand experience (from friends who have filed them), it's not slow. You essentially just write a demand letter and require the other side to say why they DON'T owe you money. If they don't respond timely (I think it's 30 days or something), then you get your money as a default judgment.

While crush-onastick may be correct as a general matter about how long deceptive practices cases take, the special Massachusetts 93A actions should be quicker, I would have thought. Was this really a 93A action?

[OP, if you're willing, would you mind sending me the name of the lawyer? My SO and I have been looking for a Landlord / Tenant attorney in the Boston area, and I don't blindly want to engage someone a fellow MeFite has had some qualms with (esp. regarding responsiveness!). Only if you want, obvs. No pressure!]

Good luck!
posted by Admiral Haddock at 6:57 AM on January 14, 2014

Right, I am not at all familiar with Massachusetts law, so the Admiral may well be right that this is way too long for this sort of case. I could easily be way off-base!
posted by crush-onastick at 7:16 AM on January 14, 2014

why keep throwing good money after bad?

Their lawyer is working off contingency. They haven't paid him a dime. And don't think that means he lacks motivation. On the contrary, until something comes of this, he doesn't get anything at all.

And if our lawyer is incompetent, is it worth changing lawyers at the point?

IANYL, but as others have pointed out, this doesn't sound like incompetence for a variety of reasons. I see no obvious red flags from what you've written here.

Are we going to lose anything by doing this?

Actually. . . probably. First, you've got a guy that's spent two years with the case. He knows what's going on better than anyone else does, probably including you. If you take the case and go somewhere else, you'll have to start over.

Second, your lawyer has done real legal work here, and he's entitled to be paid for that. This means that if you do hire another lawyer, he'll have a lien on any recovery, meaning your new lawyer will get paid less than if you'd gone straight to him. That's going to discourage other lawyers from taking your case.

Will document transfer between him and the new lawyer go smoothly?

It ought to. You do hear horror stories, but most attorneys are pretty chill about this sort of thing. Your current lawyer sounds fairly professional, so there's no obvious reason why the transfer shouldn't be simple and complete.

Any other advice for finally getting our money back?

Stick with it. I've done a fair amount of civil litigation, and a case which takes less than two years is the exception, not the rule, even at this level. Truly complicated cases--and consumer protection law is more complicated than it sounds--can take five to seven. It's not time to get upset yet. If discovery hasn't really gotten moving by the end of 2014, then it might be time to get worried.

What you need to understand here is that the wheels of legal process turn slowly. The discovery process takes as long as it takes, and even the deadlines imposed by the rules are pretty generous. If you file something, the other side generally has at least a month to get back to you, and it's expected that both sides will be willing to spot the other with an extra month for the asking. So a single production request could easily take two months. If there's a back and forth there, e.g., one side doesn't want to give something up, or something produced suggests additional requests, that could easily add another two months, minimum. And once that's done, you have to schedule depositions, which can easily be a three to six month process by the time you can get everyone together. So for a boring civil case, discovery taking a year to complete is entirely commonplace.

It's not just that either. Say the parties need the court to make a ruling on some discovery dispute or someone files some kind of dispositive motion. Now you have to get a hearing date on the court's calendar. Depending on how busy the court is and what you're asking for, that could be anywhere from a week to three months out. Scheduling a trial is even worse. In my last jurisdiction, if you sat down today to try to schedule a three day trial, the earliest you could possibly get in would likely be some time in the fall. In my current jurisdiction, it'd be more like December or even into 2015. And if one lawyer can't be there for the earliest date, that could bump you out another month or three. And what really takes the cake is if the parties get within a month or two of trial and realize that they're not going to be ready. Now we're potentially another six-plus months out.

You get the idea. Your lawyer probably doesn't seem to be in any particular hurry because he isn't. That's not because he's incompetent or not a dedicated advocate, but because he realizes--and you need to understand--that this thing was always going to take a while.
posted by valkyryn at 7:45 AM on January 14, 2014 [5 favorites]

How much are you talking about, 3-4 thousand dollars here? I don't understand why the other side would not come up with a reasonable settlement offer if you're just looking for that comparatively small amount of money. I agree that civil litigation takes a long time, and nothing you describe happening seems per se incompetent. But it makes no sense to me overall that such a small case would be taking so long. Is there some other claim besides the money you paid? Such a long time for $5k is not right.

What I suspect might have happened is that when your cases were "combined" (and I'm not exactly sure what the legal meaning of that is), the case became more difficult to settle for you, because the previous tenants had much bigger damages. Either that or there are some damages in your case that go beyond the money you lost. Ask your lawyer.

If you fire your lawyer now, you may still owe him a percentage of any recovery (that's a standard clause in most contingency fee contracts that I'm familiar with). So firing him may not be the best approach. If you switch lawyers you are just going to run up your legal fees further because you will have to pay the old and new lawyers out of any settlement.

If you just want this to be done with, tell your lawyer to settle ASAP. You can also try renegotiating your lawyer's fee with him.
posted by yarly at 11:28 AM on January 14, 2014

If the lawyer is working on a contingency fee arrangement, don't expect him to go die on every hill, except the ones that have gold in them. Only foolish lawyers tilt at windmills for free. While it's true that it's not the lawyer's job to be the friend of the other lawyer or the judge, it's not worth antagonizing people unless it is going to benefit you (in which case your lawyer should not hesitate).

The lawyer also has time invested in the case and if you switch, he's entitled to his fair share of the take, which diminishes what another lawyer's fee might be in a contingency matter. Since the costs and time sunk into the venture are probably already significant, you'd really need to question whether the lawyer who would assume the case is very bright. That's not a recipe for attorney-client happiness.

It's not even clear there's any reason for you to be worried. There's a decided bias in favor of rendering decisions in cases on the merits, so setting aside a default based on an attorney's conduct (as opposed to the party's) is kind of a no-brainer if the other side agrees to pay the cost of the wasted time that resulted, or if it just wasn't worth fighting over. Neither is the snail's pace of litigation. This is not the process to use if you need to get money fast. In law, as in other things, you have three menu selections: (a) cheap; (b) fast; and (c) good. Pick two.

Finally, I have to question whether anyone, even those of us who are experienced trial lawyers, have a grip on all the facts necessary to say whether you're being well served by competent counsel or taken for a ride by a shyster. Only another lawyer, familiar with the file and the law in your jurisdiction could really say for sure.
posted by Hylas at 11:35 AM on January 14, 2014

I have done this. MeMail me.
posted by juniperesque at 7:16 PM on January 14, 2014

Have you asked your lawyer. "It seems like you're being a pushover. Can you explain your strategy?"
posted by J. Wilson at 6:33 AM on January 15, 2014

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